correct earlier ruling

Nunc Pro Tunc Reinstatement of Status

nunc pro tunc

A powerful tool to salvage an accidentally expired I-94

Nunc pro tunc (English translation: “now for then”) is a Latin expression in common legal use in the United States, the United Kingdom, and other countries. In general, a ruling nunc pro tunc applies retroactively to correct an earlier ruling.

A typical Scenario requiring nunc pro tunc adjudication in the non-immigrant visa context:

You go on-line to the CPB website to pull up your I-94 for your lawyer because you are getting ready to either file a change of status, an extension of stay or adjustment of status, and to yours and everyone else’s shock and disbelief, an expired Form I-94 pops up.

At face value, it looks like the end of the line. It is not permissible to file either an extension or change of status or adjust status to permanent residence in an employment context if the I-94 has expired. Furthermore, presence in the U.S. without a valid I-94 constitutes not only an overstay in unlawful status but “unlawful presence” with draconian consequences. Unlawful presence of 6-12 months + departure from the U.S. triggers the three- year bar to re-entry. Unlawful presence of 12 months or more + departure from the U.S. triggers the ten-year bar.

How does this happen?

An employee and/or family member does not realize that an I-94 has expired. Sometimes, the CBP officer at the airport only gives just enough time on the I-94 to match the visa in the passport and not to match the validity date of the underlying approved Form I-797.

In another situation, the CBP officer enters the I-94 validity date into the computer as expiring on the same date as the expiration of the passport. This is often the case and the unsuspecting individual does not notice because she has already submitted the passport to her Consulate to obtain a new one. She doesn’t download her I-94 from the website until she is ready to file the extension and to her shock and horror she realizes that she has been out of status and accumulated unlawful presence with her expired I-94.

In a different scenario, the employer had changed the employee’s status to H-1B but had not done anything for the H-4 family members. The wife and child had obtained H-4 visas at the overseas Embassy and entered the U.S. When the employer filed the petition to extend the H-1B for the employee, the H-4s were not extended for the family. The wife and child were therefore in the U.S. on expired Forms I-94.

In the first example, CBP clearly made an error and if it is discovered after a short while after entry it may be possible to go to deferred inspections at the local USCIS office and point out the CBP error. Often, they will fix it. But if the error is not discovered until after filing either an extension or an adjustment of status and USCIS issues an RFE, then usually USCIS will accept the explanation if proof can be submitted along the lines of a Nunc Pro Tunc argument.

A Nunc Pro Tunc approval means that even though the application may have been filed after the expiration of the I-94, and there was a technical break in the status, the approval will excuse the late filing and seamlessly connect the dates so that there is no break in the status. For example, if the applicant’s status expired on August 1st, 2016, and an extension application was not filed until December 6, 2016, if the application was approved Nunc Pro Tunc, the validity period of the extension would start on August 2, 2016, thus erasing the gap in valid status. This is critically important because it means that even though the application was filed late, because the application was approved Nunc Pro Tunc back to August 2, there was no break in status and therefore no violation of status and therefore no unlawful presence.

What is Required to file a successful Nunc Pro Tunc Application?

Even if an applicant needs to file an extension or change of status late, after the I-94 has expired, it can be approved Nunc Pro Tunc (out-of-time) to avoid the break in status in limited circumstances, if the applicant can show that:

  1. The failure to file was due to extraordinary circumstances;
  2. The extraordinary circumstances were beyond the applicant’s control;
  3. The delay in filing was commensurate with the circumstances, meaning that the explanation is reasonable and the delay makes sense in light of what happened;
  4. The applicant is a bona fide Non Immigrant;
  5. The applicant has not otherwise violated his/her visa status; AND
  6. The applicant is NOT in removal (deportation) proceedings

If the applicant can prove all of the above to the satisfaction of USCIS, then the application will be granted with a Nunc Pro Tunc status reinstatement back to the date of expiration of the I-94.

We applied these six rules to the third example above, where the employer didn’t file an extension for the H-4 family members.

If you find yourself in a similar predicament, and if your lateness to file can be explained using the 6 factor requirements above, then you may be eligible for the Nunc Pro Tunc status reinstatement which will preserve your valid U.S. immigration status.

133 thoughts on “Nunc Pro Tunc Reinstatement of Status”

  1. I have an H1B visa valid till March 2021. My 797 is also valid till March 2021. However, my passport expired this year 4th June 2019. I have applied for a passport and expect to get it next week.

    The issue is that my I-94 was also valid till 4th June 2019. I just noticed this today- I have currently overstayed my I-94 by 17 days and running. What are my options now? I am still waiting for my new passport.

    Also, my green card application is underway – I have applied for I-140 under EB1A.

    Please advice.

    Thanks,

    1. Hello. How long do you think it will take until you get the new passport? I am trying to help you decide if you should file an amendment nunc pro tunc now or if it would make more sense to wait for the new passport and then leave the U.S. and re-enter in your valid status. We don’t want you to hit the 180 day mark because then you will be subject to the 3 year bar. And it would also help to know your priority date for the Eb-1. If you would like to send me an email with more details, please do so at kelly@kellywachs.com. Thank you.

  2. Hi Kelly,

    I had my H1B renewed in 06/2017 and got a 3 year extension with I-94 expiry until 10/2020. Later I went to India, got Visa stamped and when returned to USA, I was issued a new I-94 with an expiry of 09/2018 (expiration date of my old passport). I renewed my passport in 02/2018 but didn’t notice that my I-94 was expiring. So, its been more than 9 months that my I-94 is expired but my Visa, I-797 are valid until 09/2020.

    Should I file for a Nunc Pro Trunc (NPT) H1B or call CBP office to get the I-94 corrected or leave USA and come back to get a new I-94 ?

    Thanks,
    Praveen

    1. Hi Praveen- In my experience, Deferred Inspection will not correct it once it has expired even if the PP is now valid and the visa is valid. The problem with leaving and returning is that you are subject to the 3 year bar because it’s been expired for over 6 months. The bar is triggered upon an application for admission. So I think you are left with NPT unless you are in a jurisdiction where they will allow immigration to correct the I94. I am close to the San Jose and San Francisco offices, and they will not do it. The only time they will fix the I 94 in the system is if there is a new passport, but the I94 has not yet expired. Then they will change the end date to match the end date on the passport.

    2. I filed extension for my H1B and H4(dependents) in May-2019. (H1B AND H4 Was about to expire in (Aug-19).

      My H1B Extension approved in Sept-2019.
      But My H4 dependents petion was in progress and got denied in May 2020.

      So my Query is
      1) can I reapply H4 for my dependents without them leaving the country ? What are the ways?

      2) will it impact my Approved H1B?

      3) If not immediately when can I reopen the H4 for the denied case?

        1. 1) H4 was denied due to not attending bio metrics.
          2) I-94 expired on Aug 2019
          3) H1 Approved on Sept 2019
          4) H4 denied on May 2nd 2020
          5) Applied for NPT on June 17, 2020 ( applied after 45 days of H4 rejection)
          6)Attorney cancelled NPT on July 27, 2020( as USCIS did not receive cheques)
          7)Attorney will raise new NPT on July 28 2020

          My query is Attorney is applying for NPT again on July 28 2020 which mean 90 days after H4 rejection, so is that leagal to stay for my dependents in USA after 90 days of H4 rejection ??

  3. My wife on L2 got I94 till Jan 2019 due to her passport expiry date but she had valid I539 till June 2019. We came to know about it by end of March 2019. So she reentered USA on March 2019 and got her I94 till June 2019.

    My questions are
    1. The period between Jan 2019 to March 2019, is still considered as overstay?
    2. Will this overstay have impact on subsequent visa extension or green card processing?

  4. Hi Kelly,

    Thanks for such a detailed article on Nunc pro Tunc. Could we also file for Nunc Pro Tunc ruling in case of late filing for renewal of I765 (employment authorization document).

    I have my I-485 pending with a priority date of Dec 21, 2017. I-485 interview held on Mar 25, 2019 and was given a recommendation for approval at the time of interview. My current EAD expired on May 14, 2019. I applied for renewal on June 20th 2019 & recieved I-797 for my I-765 renewal application.

    Could I file a Nunc Pro Tunc application with USCIS to forgive my failure to timely file a request to renew my EAD, and backdate the validity date to close the gap in status, so that I can continue to work.

    I would appreciate your advice.

    Regards,
    HM

    1. Hi HM-

      I have never done this with an I-765. I don’t know what preference category you are in, so I don’t know where things stand with your adjustment of status case? Perhaps it’s backlogged? In any case, when you file for AOS, you can have up to 180 days of unauthorized employment under INA Section 245K and still be able to adjust. So I don’t think it’s going to be a huge issue that you have a bit of unauthorized employment with respect to your green card when they get around to issuing the green card. But that does not address any issue with your employer and work authorization. The only people who benefit from the automatic extension of the EAD are those who timely filed. The EAD’s are taking forever. Have you received it yet or you are still waiting? I suppose you could file it nunc pro tunc but not sure what the reason was for the late filing? Also, if it’s pending and you file another application, that might confuse them. So I am not really sure of the best way to handle this. Did you fail to keep your underlying non-immigrant visa valid? It’s situations like this that have made our policy to encourage employers to keep the non-immigrant visa active even if the employee has an EAD.

      1. Hi Kelly,

        I was on L-1A visa with my ex-employer, who also sponsored my I-485 application in EB-1 category (priority date Dec 21, 2017). I got my EAD in May,2018. Also got my I-485 interview done on Mar25, 2019. My attorney with my ex-employer told me we don’t need to file for EAD renewal as GC should arrive & also I have L-1 visa valid through 2022. Unfortunately 2 things happened, a) My employment with ex-employer abruptly ended in May 2019, & b) I-485 for Indian citizens got retrogressed.

        I have secured an offer from another company and also filed for EAD renewal on June 20, 2019 (after expiry of my previous EAD on May 14, 2019). Since EADs are taking much longer currently, and I don’t get 180 days automatic extension due to delay in filing for EAD renewal, that’s the reason I was asking whether Nunc Pro Tunc could be applied requesting USCIS to backdate my I-765 application to May 14, 2019 from my actual reciept date of June 20, 2019. That would then qualify me for 180 days automatic extension of EAD.

        I would really appreciate your advice.

        Best Regards,
        HM

    2. I know you were on an L but were you ever on an H that was not exhausted? As I said- I have never done a NPT for EAD. Not sure how you would do it since it’s already pending. Normally, you would do it upon filing. Could you ask for an expedite for financial reasons? I’m not sure if they are granting them but you could try?

  5. Hello Team,

    My new employer missed to apply for my wife’s extension during my H1B visa transfer. Her I-94 expired on sept 19th 2018. She crossed 320 days.

    What is the best way for her to reinstate her I-94 status.
    1. Apply for NPT?
    2. Leave the country ?
    3. Apply for my extension and her ? On premium? My I-797 expires on Mar 2020
    4. I send my wife to India . Change employer ON PREMIUM and apply for new visa stamping for my wife ? + NPT

    Please suggest best and legal solution in my case.

    With Regards,
    Khan

      1. Hello Kelly,
        I’m filing for my wife H4 Visa Stamp.
        There is a question on Overstay in the DS 160.
        “Have you ever been unlawfully present, overstayed the amount of time granted by an immigration official or otherwise violated the terms of a U.S. visa?
        Yes No”

        what would be the right way to respond here in my case?

        Please let me know, if i could reach out to you to discuss the options.
        with regards,
        NK

  6. Hi Kelly,

    I have H1B Visa till 08/11/2019 and my I94 expiry date is also on 08/11/2019. My employer has filed an extension on 08/07/2019 and it was rejected on 08/08/2019 due to Incorrect fee. They have filed the petition again on 08/21/2019 using Nunc Pro Tunc provision. I would like to know whether I will go out of Status till I receive the new receipt notice for the new filing or I am good to continue the work.
    Will I get a new receipt number or the old receipt number will be used ?

    Thanks

    1. I believe that technically you are out of status for that brief period. But if the extension is approved NPT it will correct the gap. In any case you are not anywhere near having 180 days and this brief period will not impact your AOS if one is in process. If they deny the NPT but approve the status, you will have to depart, but it should still be okay. I hope they PP.

  7. Thanks Kelly for the quick reply

    New receipt number will be generated or the old receipt number will be used for reprocessing. Can you please confirm

    1. If the check was wrong I’m surprised you got a receipt notice. Did you? Usually it’s generated when the check is cashed. If it was rejected but assigned a receipt number, it should be the same one. I cannot day for sure, but generally once a receipt is generated, that’s the one they will use.

  8. Actually they have sent the check for normal processing but applied in premium processing due to which uscis has rejected based on incorrect fee. As per your statement i think the receipt notice has generated using the check given for normal processing.

    So now the same receipt number will be used for premium processing?

  9. Hi Kelly,

    Sorry I have another question related to my wife’s petition I 539, She has received Bio metric appointment and receipt notice. Will that remain same, we can go ahead with the same letter or do we need to wait for another Biometric appointment letter

    Thanks

  10. She can get her biometrics now. Even if you PP, the H-4’s are taking so long that they will match it up to yours in the end.

    Regards and hope I helped!

    Best,
    Kelly

  11. Hi Kelly,

    Thank you for your inputs. My I-94 expired on 8/31/19 and an H-1b extension has been filed at a wrong service center that had reached them on 8/30/19. We are not sure when it will be mailed back to be able to send it to correct service center with a NPT request. Will I be accruing unlawful presence meanwhile? Will I have continued authorized stay?

    1. Well technically yes. It must be appropriately filed. But it’s a very short amount of time. So if they don’t approve it nunc pro tunc, you could leave and return and should be ok. No 3 year bar. These things happen. They know that. Hopefully, they will be generous. This is why these cases should be filed ahead of time. But sometimes it’s not possible. Good luck.

      Kelly

  12. Dear Kelly,

    I filed I-539 with nunc pro tunc request to extend my H4 visa this June (We were unaware that we need to file separate extension application for H4 and the immigration attorney helping us failed to advise us on this). I did the fingerprint in July. And then we just got a letter from USCIS, requesting an explanation for the late filing. We are so confused. Our attorney included the nunc pro tunc request and explanation in the cover letter for I-539 form. What could be the possible reason for this request from USCIS? Could this be a simple human error (for some reason the USCIS officer processing our case did not get a chance to look at the cover letter)? Or does this mean our request for nunc pro tunc relief was not appropriately made? Does USCIS charge additional fee for nunc pro tunc request? Is there any specific form to be filled out in order to make a nunc pro tunc request?
    Please advice.
    Your kind assistance will be greatly appreciated.

    T&W

  13. I have a valid H1-B i797 until 2021 but my i94 expired in Aug 2019 which corresponds to my previous employer’s H1-B visa date.

    I entered USA in Jan 2019, but i94 was’nt updated to latest i797 date.

    Should I have the lawyer contact CBP office on my behalf or should I file nunc pro tunc ?

    1. Hi. In our experience Deferred Inspection won’t update the I-94 once it’s expired. You can try, but you may have to NPT. If you have a valid visa stamp you could go out and back in. You don’t have 180 days of unlawful presence. Kelly

  14. Hi kelly,

    My employer filed my H1b in 2018. It was selected but due to a missing page in LCA, USCIS rejected my application. My employer never told me that. I got to know right now. Can I apply for NTP.? I need help. what can Be done.? Please help.

    Thanks.

    1. Hi Premal-I’m sorry for not answering this more quickly. Right now, we would not be able to help with this. We are booked up until the new year (2020). Can you tell me when your I-94 expired, or are you on OPT still? Or what it your status? When you say you were selected, do you mean in the lottery? I cannot believe it was rejected and not RFE’d and that your attorney didn’t tell you. Give me more info and maybe I can help you without actually having a consultation (which would require a fee) since we would not be able to handle it right now in any case.

      Best,
      Kelly

  15. Hi Kelly,
    My situation is :
    1 – > I’m on H4.
    2 – > My wife is on H1 and I94 Expired on Sep 30 2019
    3 – > My Son is on H4 and I-94 expired on Sep 30 2019
    4 – > My wife’s employer says all the petitions were sent in single package to USCIS on Sep 30 2019 and USCIS received on Sep 30 2019 as per Fedex Tracking Number
    5 – > I-797 C received for all the applicants last week.
    6 – > Received Date in My form and My Wife’s form is Sep 30 2019
    7 – > But in my Son’s I-797 C it is October 07 2019.
    8 – > Fedex tracking says the documents were received on Sep 30 2019
    9 – > My Receipt Number and my son’s receipt number are in same sequence and ends in next numbers (140 & 141)

    Will this be a problem for my son.

    Please advice…

    1. Hi Rajesh:

      I don’t think this is going to be a problem. If it is, you would be able to file a nunc pro tunc application to close that brief gap by showing proof that you filed in a timely manner. I’m thinking that they will most likely date his H-4 the same as your H-4. That being said, it’s not advisable to file an extension of stay at the very last moment because so many things can happen that can delay the receipt of the docs to USCIS. I’m guessing this was b/c the attorney didn’t file ahead of time. In the future, make sure that they do. Also, how did the application get sent on the same day it was received? Just curious. Well, at this point, I think you will just have to wait and see what they do with your son’s case. But it’s going to be okay and not that difficult to fix if they date it a few days later than the actual expiration date. I hope this helps. Best, Kelly

      1. Thanks Very much Kelly for the response. All the documents were sent in a single package and it was received by USCIS on 10:03 am of Sep 30 2019 and it was signed and received by some person as per Fedex Tracking Report.

        Thanks.

  16. Hi Kelly
    I entered US this Jan 2019 and got my I-94 till my passport expiry date which was Sept 14 2019. I have i797 valid till sept 2021. I renewed my new passport but missed my I-94 update which makes me out of status for past 2 months. I m scheduled to go to India November 30th should I just fill in DS160 yes overstay and give reasoning and get visa stamped or do npt? Please help

  17. Hello Kelly,

    I have valid i-797 till July 2020 however my wife and daughters i-94 expired in Aug 2018 and we were not aware of filling for both them separate extension after landing. Now they have crossed already 1 year out of status. We had a consultation with one attorney and she suggested us to file 2 NPTs for both them. I wanted to check if that’s needed as my daughter is below 18 years.
    How long it will take for decision from USCIS and we also have to file new h4 extension for my h1b petition.

    1. Hi Kulkamit:

      First of all, the fact that you child is under 18 is only relevant re: 3/10 year bar. She is not accruing unlawful presence b/c she’s underage. But your wife is subject to the 10 year bar if she leaves and tries to return. So yes, you need to do NPT for both of them (b/c they are both on the same I-539 and it’s just one filing fee, so why not?) Since your H-1b is expiring in July of this year and since you can file your extension 6 months prior, I think I would file your extension of stay and then with that, file the H-4 NPT extensions with all of the proof/explanation.

  18. Hi Kelly,

    I have a questions regarding my status in USA.My I-94 got expired in March2019 and H1-B Extension got Denied in Dec 2019.We filed a Nun pro Tunc in January 2020 and it got Approved in January with I-94 starting from January 2020 to Dec 2020.My new I-94 which is approved was not backdated to March 2019 and we are yet to receive the Hard copy from USCIS so my questions are

    1) Am i legally allowed to stay in USA and work with my Client as i got a new I-94.
    2) If i am not legally allowed then did i incurr illegal stay from March 2019 or the date of the Denial.
    3) Can i check with a CBP offcer to correct the I-94 back dated issue.
    4) Do i need to go out of country and get my Visa Stamped and will it cause any issue.

    Please let me know.

    Thanks,
    Suresh

    1. Hi Suresh–USCIS will not actually backdate the I-94. In fact, they cannot because you cannot backdate an LCA. So unless you had an LCA that covered the whole period, you will have that gap. But the regulations themselves speak to this and you are considered to be backdated by virtue of the NPT being approved. The only issue that I see is that if the gap between the date of expiration of the I-94 and the date of the new I-94 exceeds 180 days, you may have problems with international travel and the 3/10 year bar. But in there somewhere is the period in which your H-1b was pending. I just don’t have all of the details in order to advise you on that part. I would check with your immigration lawyer. But for now, you can legally work as that gap is considered “fixed”. I would just be sure to check with your lawyer before you travel outside of the US b/c that’s when the bars kick in. They don’t have any impact while you are here in the U.S. I hope this helps. Have a nice weekend. Kelly

      1. Thanks Kelly for your Reply.My H1-B Decision was pending from January 2019 to Dec 2019.In March 2019 my I-94 got expired and visa got Denied in DEC 2019.

  19. Hi Kelly,

    I have filed my H1 visa extension on Nov 2019 and received an RFE . We have responded back with all the details . Later my extension got denied on Jan 7 2020 . So in the mean time my I-94 got expired on Dec 25th 2019 .

    Now we planned to file the extenion with all the required details correctly and use the NPT . As we have filed this in premium today , can I stay for few more days now .

    Can you help on this with your suggestions .

    Will my case be approved with the NPT .

    Thanks
    Joshua

  20. Hi Kelly,
    First of all Thanks for publishing such a detailed article and generously responding to everyone questions.

    I’m fortunately found your blog while searching for possible solutions to my problem.

    My situation:
    My Daughter (6 yrs old) I94 was given based on her passport during the last arrival in USA (may 2018) , I94 was given til OCt 2019 but post renewal of her passport, I forgot to act on I94 and realized now, which is expired now over 155 days but she has valid I797A and VISA Copy till June 2020 same as primary H1B applicant.

    My dependents suppose to travel to India but due to current travel restrictions and COVID19 Situation, we had to cancel the trip.

    My company attorney is agree to file an NPT however I would like to know if there is any other possible solutions . or What would be the possible cases that USICS not approve the NPT? if so, what would be the consequences may cause.

    Also heard that post I94 expiry visa status would be voided or invalidated state automatically by USCIS so can’t return US thru existing H4 though have active VISA Stamping till June 2020, Is it true ?

    Appreciate your response and valuable suggestions.

    1. Hi Vinood- If your daughter has a valid visa and you do to, what about a quick trip to Mexico/Canada to get hers matched up with yours? I have not heard this about the last paragraph you wrote. Keep in mind that children under the age of 18 do not accrue unlawful presence.

      1. Hi Kelly,
        Sorry for the late response. I some how lost the web link from my browser favorites and not received email notification so couldn’t find your response.

        Initially i planned to cross the mexico boarder and return to match up with mine. But I have been told by attorney that my daughter visa is in invalidated under 222g since I94 was expired asked me to further check my company immigration team but they also didn’t clearly confirm so i couldn’t decide my self later due to COVID-19 Situation, Now I can’t even make travel outside with small kid.

        Last week my company agreed to file “Nunc pro Tunc” along with my H1B renewal. Hope USCIS will consider this under special circumstances.

        Will it be possible to file NPT under premium processing? What is the general response time for USCIS to approve or denial?

        Thanks,
        Vinod

  21. Please note—I try to answer as many of these as I can but if the fact pattern is too complex, I have to be careful not to give binding legal advice. So please accept my apology if I cannot get to your questions. Thank you.

    Kelly

  22. Hi Kelly,

    First of all thank for you valuable inputs for above questions, i am also in similar situation

    My old employer filed extension and i got RFE, we replied to RFE and got denial this time, in mean time My i-94 got expired(Feb 20th 2020). I have filed consular H1B with my new employer and got approval, but due COVID-19 i was not able to travel and all consulates closed even in Mexico and Canada. I don’t have any option to get visa stamped.

    Today i heard about NPT, i have fews questions regarding NPT

    1) can i file NPT given the global pandemic situation ?
    2) can i file premium processing ?
    3) what if my petition for NPT got rejected or denied, my I-797B will be still valid to get visa stamping if consulate reopens

    will be waiting for you reply

    Thank you

    1. Hi Sri- First, as I am sure you know, PP has been suspended for the time being. I am wondering if, instead of a NPT, you should ask them to change it to a transfer instead of a consular processing case. I’m not clear why it was set up for C/P instead of utilizing the 60 day grace period and re-filing it? In any case, maybe the issue was the expired I-94. I wonder if you lawyer could contact USCIS and ask them if they are changing C/P cases to regular transfers? It’s not your fault (and everyone else calling me all week!) that you cannot get out of the US to get a visa stamp. I am certain there will be accommodations. I feel I’m not being particularly helpful. But I hope this helps a bit?

  23. Hi Kelly,

    First off, thank you very much for being so kind in taking time to answer all the questions here. Hats off!

    I have filed my H-1B visa extension in December 2019 and received an RFE . We have responded back with all the details . Later, my extension got denied on March 18, 2020 . So, in the mean time my I-94 on the previous approval got expired on January 03, 2020.

    1. When does my unlawful presence start?
    2. Will my H-1B visa and my wife’s H4 visa be void and cancelled due to overstay?
    3. I was transitioning from a contract employee to a full time employee. So, my full time employer has filed a H-1B transfer on February 24, 2020 in regular processing. It is still pending. Will the transfer be denied? Since premium processing is temporarily suspended, I can’t get this approved in a timely manner. Can they file a nunc pro tunc request and probably upgrade to premium processing when it is made available? Will I get a I-94 on the approval due to covid-19 and my wife’s pregnancy?
    4. If we file a nunc pro tunc request and change status to a visitor visa, can we get back to H-1B and H4 respectively later when my pending application is approved?
    5. How long does nunc pro tunc request take for approval? Does it need to be made in conjunction with a H-1B extension? Can we stay while a decision is made? Can I start working if my current employer re-files an extension with nunc pro tunc request?( Approval might take 4 months minimum).
    6. We can’t travel to India and wait there as international travel is chaotic, not safe due to the virus outbreak. My wife can’t travel (we have physician’s letter saying not safe for her to travel). How long can my wife and I stay here as it’s not safe to travel? Is there any way I can get an extension to work without leaving the country? My wife is 28 weeks pregnant and I need medical insurance to pay her hospital bills. I’m the only one here to take care of her. I need to stay here too.

    Please suggest. Thank you.

    Thanks,

    Teja

    1. Hi Teja: First, congrats on the baby! That’s the most important thing. There are too many scenarios here and I have to be mindful of liability, but I will try to tackle some of it. Your ULP starts upon the denial of the extension assuming there was no fraud involved or alleged. So you are okay for now. Visas are not voided from within the US. The visa is just a means of entering the US. The I-94 rules! After the denial, you have a 60 day grace period, so I think your pending transfer should be fine. And in any case, the current one was filed before the denial of the extension in March. Even if you count from 1/3/2020+60 days and your current pending one was filed on 2/24/2020, you should be okay. I don’t see why you would need NPT in this scenario, but I am not your attorney, so I could be overlooking something. But I don’t think so.

  24. Hi Kelly,

    Thank you very much. Appreciate it. Yes, it’s my top priority right now to keep my wife and baby safe. Thank you for patiently answering all my questions. That’s awesome. But with no premium processing, I will have to wait at least 3 months for a decision (not sure if I can get I-94 with the approval). It’s more than the grace period. So, I was thinking about NPT to reinstate my status, get approval with I-94 as it’s a life risk for my wife and baby to travel right now (virus outbreak adding to the woes) and to avoid problems during visa interviews and port of entry in the future. As long as I don’t exceed 180 days and since I have a pending petition filed before denial, I should be okay I guess? Please correct me if I’m wrong.

    Thanks,
    Teja

  25. Hi Kelly,

    Thanks for your valuable blog and answers. These really help especially during these circumstances outside.
    Need your advice/thoughts on my situation please…

    My I94 expired on Nov 5,2020, while my employer filed H1b extension before I94 expiration, however my H1b extension was denied on March 16 2020.

    Due to COVID 19, I am not able to travel at-least until April 15 and further notice as per International Travel Ban in my country(India) and CDC Website.

    1) Can a new employer file a H1b with NPT? And can I stay in US and work on receipt notice?
    2) When does my unlawful presence begin? ( on Nov 6,2019 or March 16,2020 ?)
    3) If I don’t get any employer to file a new H1b, can I atleast file I539 and stay in US for some time untill situation becomes normal outside?
    4) What is best thing to do considering the situation?

    1. Hi Krish:

      I assume you meant your I-94 expired on 11/5/2019, not 2020. I don’t see why either your current employer (have they terminated you?) or a new employer could not file a new petition NPT. But I do not see how you would be work authorized in that case? You are not technically porting b/c you are now OOS and you cannot utilize the 60 day grace period b/c your I-94 status expired. What would you base the I-539 on? You have to be in status in order to change status, so I don’t think that will work. I have to believe the there will be some accommodations made for people who cannot possibly leave. But those have not been made yet. I think I will need to do a new blog soon once some of this has flushed out. Could your current employer how got denied re-file? Or they are not willing to. Was it denied for a valid reason? Stay safe. Kelly

      1. Hi Kelly,

        Thanks for reply.
        Yes, my I94 expired in NOV 5,2019.

        Yes, my current employer terminated me. My H1b was denied for Evidence provided was not enough to prove my Job duties are under Speciality Occupation and are proved to be satisfying during time provided on the client letter untill Oct 2022. (FYI: Same LCA and job duties provided for intial H1b Cap gap and I got it approved)

        1) What are my options now with my Employer ‘A’ (who terminated me) ?

        2) Upon getting a new project with new employer B, can this new employer file New H1b with NTP and am I authorized to work.

        Thanks

      2. Hi Kelly,

        Thanks for reply.
        Yes, my I94 expired in NOV 5,2019.

        Yes, my current employer terminated me. My H1b was denied. Reason being —Evidence provided was not enough to prove my Job duties are under Speciality Occupation and job duties mentioned doesn’t seem to be satisfying the entire time provided on the client letter untill Oct 2022. (FYI: Same LCA and job duties provided for intial H1b Cap gap and I got it approved)

        1) What are my options now with my Employer ‘A’ (who terminated me) ?

        2) Upon getting a new project with new employer B, can this new employer file New H1b with NTP and am I authorized to work.

        Thanks

  26. Hi Kelly.
    Thanks for this awesome answers.

    My case
    1. H1 Transfer initiated in June 2019 by employer A
    2. Converted to PP in January 2020, as I-94 was approaching (I-94 expiry – 20th march 2020)
    3.Got RFE , i was pushing the employer to give quick response so that my decision could come before I-94
    4. RFE response was delayed and given on 12th March – got denied on 23rd Mar 2020

    Option1: My current employer A and attorney is telling that they will file a new petition with NPT

    Option2 : Employer b is also ready to file new petition with NPT ,mentioning they got delayed for doing h1 transfer(After I-94 Expiry)

    Ques 1: which option will you advice in terms of looking a Strong case for NPT and h1 approval
    Like Existing employer A of New employer B

    Quest 2: After applying and if it is taking more then 180 days attorney is suggesting to leave USA and wait in home country and come back after stamping . so any impact of staying in USA out of status as long as it is less then 180 days

    Looking for quick response as i have to get it filed next week

    1. Hi Sujeet–

      Sorry for what you are dealing with–as though things aren’t messed up enough right now. So, I assume that you ported to company A from company X and that company X is no longer in the picture. To me (and this is not legal advice, just my gut feeling from experience) I would sort things out with company A before trying to move to co. B. Have them re-file. Fix the deficiencies (specialty occupation?, wrong LCA classification?) and re-file NPT. It’s such a small number of days. Technically, yes, you are OOS so you want to be sure not to exceed the 180 days. But if we are still in Covid-land, then you will have to stay in any case. If the NPT is granted, it puts you back into status (they won’t back date it, but the regs do it automatically). When you do finally go to the consulate, be honest on the DS-160 that you have violated the terms of your status, but then explain. I think USCIS is being generous right now (the bright lining, I guess). Good luck. And I guess my gut feeling is that it’s easier to fix the one that was filed while your I-94 was still valid rather than the 1 that would be filed after the I-94 expired.

      1. Hi Kelly,
        Thanks for the detailed response. i Really appreciate it.

        Q1: is it ok to refile with Emp A and start working once i get the receipt

        Q2: if decision is taking more then 180 days , leave the country and come back when it is approved ( to avoid 3 year ban)

        Are the above 2 scenario are illegal ??

        Q3: While giving justification for NPT , the reasons given are standard ones or it will vary from attorney to attorney. In other words, is it something i or attorney can do make a strong case for NPT.

  27. Hi Kelly,

    I have a valid H1b visa and I94 till Jun 3, 2021. My employer filed an amendment to the new client and this amendment got approved only till March 17th, 2021 which is the same date on which USCIS decision is updated.
    Since it was a normal process it took 10 days to reach the I797 copy to my law firm. Once they received the copy on April 3rd,2020 they realized that the I797 approved with past dated.

    Now my law firm is saying that since the latest petition is approved with less validity and I have not traveled internationally after my amendment petition is approved, they are saying my I94 is expired and am legally out of status and my employer is saying I should go on an unpaid leave till I get the legal status.

    during this corona situation I cannot travel internationally, they are saying they will initiate NPT extension. How long will it take to process?

    My question, when I have valid visa stamping and valid I94 till June 3 2020, am not sure why my law firm is saying that being out of status and my company stopped the payroll based on this situation.

    Please suggest what options I have at this point, it will be a huge financial burden on me during this time without a salary to maintain my family.

    Any guidance during my tough situation will be a great help. Thanks in advance.

    1. Hi Sri- I hope you are well and staying safe and healthy. I am assuming you meant it was approved until March 17, 2020 even though you said 2021, right? Unfortunately, your law firm is correct. The visa is just a means of entering the US and once you are here, it’s irrelevant. And based on the “last action rule”, your new I-94 controls your period of stay. I liken it to a magic carpet that brings you into the US, drops you off and flies away. If the new I-94 expires on 3/17/2020, then you are Out of Status “OOS”. I”m not sure why they did not request the full period of time, but that’s probably another story. If they file NPT, the issue is that there is no PP as you know, so it’s going to take awhile. If the NPT is approved, then your status will be considered to be backdated to the date you fell Out of Status (OOS). They are correct, that the only way to remedy it is to leave and re-enter, but you cannot. So NPT is probably the only way to go.

  28. Hi Kelly,

    My H1-B extension petition got denied on 4/8/2020. My I-94 is also expired on 3/28/2020. Even though I initiated the process of extension in November last year, we got an RFE and due to the COVID-19 issues beginning in March, my employer’s attorneys sent the response only on 4/4/2020.

    The attorneys are asking me to leave the country ASAP. I would have also done that if I could. But due to the travel restrictions all over the world and risks associated with air travel these days, I am not willing to take the risk as of now and decided to stay put for as long it takes to be safe.

    Meanwhile, my employer has put me on unpaid leave. This has caused a great hardship for me financially.

    I read the option about nunc pro tunc h1b extension during extraordinary circumstances. Am I eligible to re-file the petition using this clause to regain status as well as work authorization while I am not able to leave?

        1. Ah, okay. I was hoping it might have been later. Well, the only thing I can think of is to have them re-file and fix whatever the issue was that got it denied in the first place. And ask for nunc pro tunc adjudication and since there is no premium processing, you may be able to make a case for expedited processing.

  29. Hello,

    I got a backdated approval on the H1B petition filed for me and got notified after my I94 expired. My Employer is filing a NPT (nunc pro tunc) for me along with I129. Due to current Covid situation, I cannot plan to travel to India and bound to stay put. And if i go in loss of pay, it would be a huge financial concern for me. Can i work and stay in US legally until there is a decision on the NPT ? How much time it would take for USCIS to give decision on NPT now that the Premium processing is paused ? Is there any other option for me in this situation? Kindly suggest.

    1. Hi. Unfortunately, you have no work authorization, so you cannot be on payroll. It’s going to take awhile to get a decision unless they re-instate PP. You can ask for an expedite, but you have to show extreme circumstances. This is explained on the USCIS website at http://www.USCIS.gov. I’m sorry I cannot be of more help. As you can see from this thread, so many people are dealing with this same issue. Good luck.

  30. Well, technically no, but you don’t accrue unlawful presence (ULP) until 180 days from the denial. So you are okay for now. Just don’t go over the 180 days if possible. If they grant the NPT, the gap is considered closed.

  31. Hi,
    I am an Indian Citizen on H4 Dependent Visa and a Housewife. my I94 had expired 11/19/2019 and I couldn’t travel due to my pregnancy and my due date was 10 to 15 days prior to my I94 expiry and since I had many complications through my pregnancy I had lost track of the situation and Also had delivered my baby with C-Section due to other medical complications.later post pregnancy we were planning to travel to India but due to my continued health issues I couldn’t travel as planned and later we ended up in the COVID-19 situation and we have to cancel all our travel plans and I was not aware of the I539 extension until recently. I had filed for the I539 application a day or 2 ago and I am not sure how the process works. Is there is possibility that under this criteria my I94 will be extended ? My H4 visa status is valid until June 2021

    1. Hi there and congratulations on the birth of your child. I hope you are doing better. Do you know why your H-4 expired prior to the expiration of your visa? Was your passport expiring? Just curious if this was your error or theirs? When you filed the I-539, did you offer an explanation of everything that transpired and request nunc pro tunc adjudication? If not, you are most likely going to get an RFE asking you to explain what happened. I think if you are able to submit letters from your doctor, proof that you had travel plans and had to cancel them and documentation that COVID was the reason you ended up not traveling, you should get a favorable decision. I doubt they will deny it outright (although they could). I hope all works out. Best to you and your family for continued good health. Kelly

      1. I have submitted the medical records pertaining to the critical medical issues I have add since mid last year (through Pregnancy) to end/ beginning this year and as well as other continued medical concerns post C-Section. And correct the I94 is what expired and H4 Validity is until mid 2021. My old passport had an expiry of 11/19/2020 and this was when my I 94 was set expire as well. I renewed my passport prior to I94 expiry but I was not aware of the I539 extension until recently and had thought I had to travel to renew the I94 and had ended up in this critical situation.

  32. Hello Kelly,

    First off, I want to say you rock for providing answers and for your candidness.

    If you are able to, I need a second opinion. I am on an L1A that was expiring Jan 15th 2020 with an extension filed Jan 10th and was recently (May 7th) renewed after an RFE. My wife and daughter were on L2 visas expiring Jan 15th. They were not included in my extension filing. My immigration attorneys state I did not provide their details on a questionnaire they had me fill out. I did not add their details in a tab – because I did not notice instructions to do so – but did indicate that I had a wife and dependent child in the main questionnaire. I expected them to be included in my application and have email correspondence delaying the filing so my wife could travel.

    As the process of initiating my EB-1C was starting, we discovered this error and now the attorneys are pushing me to travel outside the US and file for the L2s instead of a nunc pro tunc. My wife and I are at increased risk of mortality from Covid19 so I wish to avoid travel but feel like the downside of a nunchuck’s pro tunc denial is too great.

    What would you advise?

    1. Oh, thank you for saying thank you. I feel bad that I cannot get to all of these, but always hope this thread is helpful. I answer in my free time of which I have none! Let’s see–Well, I don’t know that you really have much choice at the moment if you don’t want to travel. I do think that leaving and re-entering is the path of least resistance (generally) but not in Covid-land. I do think they will approve the NPT under the circumstances. Perhaps your lawyer would be willing to do a little mea culpa to help you out? I will make one comment which is that as attorneys, we have so many cases and families and dates that we are trying to keep straight while the client only has their own family. So while I understand that you expected them to know you had family members, if they had filed for your family, you would have received the paperwork and had to sign it (well, your wife would have) so it’s important to keep that in mind the next time. Never assume that we automatically know that you have family members even if you checked off a box. Always double check. I’m more saying that for others to read (not chastising you!). I assume you don’t have a valid L-1 visa in your PP and they don’t have valid L-2’s so you could not just jump out of the US and back in (in any case, you cannot do that in Mexico or Canada at the moment). I say go for the NPT and just impress upon them that you really cannot travel at the moment. Good luck with the EB-1C. (PS–I loved what spell check did to Nunc Pro Tunc in your email). Stay well.

  33. Hi Kelly,

    First of all, thanks for the valuable blog!

    I am a H1b holder, with I-797 expires on 07/10/2020, but the I-94 expired on 06/25/2019 due to an old passport (expired 01/24/2020). I didn’t realize that until recently my employer is filing a H1b extension.

    What could be the best way to deal with the problem?
    1). Get the I94 adjusted by the CBP?
    2). Extension with NPT? (Risk of 10 yr bar?)
    3). Leave and reapply for H1b visa (3yr bar waiver?)

    Thanks,
    Jing

    1. Hi Jing- I do not believe CBP will fix it. They will normally only do so if you got the new passport and presented it prior to the I-94 expiring. Make a case for NPT. ESP now with Covid. The 3 and 10 year bars only kick in when you are making an application for admission.

  34. Hi

    I came upon your blog and was hoping you can help me answer a few of my questions.

    My company filed for my H1 extension and H4 and H4 EAD together on Nov 25,2019. Since my H1 was in premium I got my approval within 2 weeks. My wife travelled to india immediately after filing H4 extension and last week we got a notice saying that her H4 extension was denied.
    Reasons given were since she she was not present in US after filing. Also somehow the biometric appointment letter was missed or not mailed to us. So essentially her H4 extension got abandoned. The problem now is that her I-94 has expired on 3/7/2020 and now since her petition also got denied, she is not out of status.
    1. What are the next steps that could be done?
    2. Can we file the I-539 extension again or make the re-appeal to reconsider her denied petition so that this time they send the new biometric appointment letter?
    3. What is rule for unlawful presence is US. Is it 180 days after I-94 date or 180 days after denial date?
    4. Should NCT be filed?
    5. Can we file for expedited H4 extension this time?

    1. Hi Abhishek: The 180 days begins to accrue from the date of denial, so count 180 days from then. You cannot appeal an H-4 denial but you can file a Motion to Reconsider if you can show facts why they should. (when did you get the denial?). I would refile it NPT. There is no expedite for an H-4 however. The other option is to leave and re-enter with new visas if you plan on traveling together anytime soon. I know it’s difficult w/COVID though. I think for “extreme and unusual circumstances” for the NPT, you will need proof that you did not get biometrics. Does the on-line system show that the biometrics were sent? Did the lawyer get notice and failed to tell you? You should be able to travel while an H-4 is pending as long as you are in the US on the date it’s filed. So maybe the biometrics were the problem and not the travel? It’s best if you review the denial so that you understand the grounds for the denial. Good luck! Kelly

      1. The denial was sent on June 3rd. There were no biometric recorded for my wife in last 1-2 years. My spouse went outside US the same day the petition was sent to the USCIS. I was traveling to india too in dec and when the appointment letter for biometric was sent I did not receive it in my mail and may be it was lost and my lawyers did not inform me about it as well. If I knew I could have rescheduled in Feb-Mar time period. When I enquired with my lawyers after 4 months of filing, they said the case status is still pending and it does not say that biometric is required.( this was in lockdown when USCIS was closed in April). So I assumed nothing else is required and may be biometric requirement will be waived off because of COVID lockdown. It is difficult to travel outside the country now and if my spouse travels outside, will she need the new H4 petition filed or motion reconsidered? How can she get H4 visa stamped otherwise? My spouse also needs to join a her Univ for PhD in Aug 2020 and not sure if she can do COS to F1? I was hoping she will have her H4 by now and can continue to study on H4 until we travel outside and then get her F1 stamped. But now I don’t think that is an option. What are the timelines for motion reconsideration and what happens if they don’t reconsider? What is the fallback?

  35. Hi Kelly,

    Thank you very much for the article. I’m in an expired I-94 situation as well. Here is my case

    I filed a H1 extension and got it on 12/16/2019 in premium processing & my extension/visa was approved from 01/01/2020 to 12/31/2020
    but my I-94 was issued only from 01/01/2020 to 01/10/2020.

    The end date of I-94 wasn’t noticed by my attorney & employer when the approval came. And later when it was sent to me, I didn’t notice it either.

    When I went for my Driver’s licence renewal yesterday(June 16th,2020), the employee pointed out that my I-94 expired in January.

    I realized then that my original passport expiry date was 01/19/2020 and I got my new passport in January after my H1 was approved. So, did USCIS mistakenly issue the I-94 end date as 01/10/2020 or was it intentional ?

    I brought it to my employer’s notice immediately on June 16th & he filed for a typographical correction form with USCIS on June 17th 2020.

    I’m really worried now as I’m considered out of status now and will reach 180 days with out of status on July 8th 2020. I want to know my options if the correction form submitted by my employer gets rejected.

    Can I file a Nunc Pro Tunc H1B extension as it was not intentional?. If I do that, can I continue to work?. I can’t travel now with COVID and embassies are closed in India. What is the best course of action for me now?

    Please advise, I would greatly appreciate it.

    Thank you,
    Rahul.

    1. Hi Rahul. You know what I think happened? I think they meant to give you until 01/10/2021 (added the 10 day grace period) but accidentally put 2020. Your Passport should not matter when you are here in the US as long as it was valid when you filed, it doesn’t matter if it expired. They still should have given you the full year. So I suspect they will fix it.

      1. Thank you so much for your prompt reply. That sounds so relieving to hear after what I have been through the last couple of days.

        What steps should I take next? Should I prepare to file the NPT if the worst happens and they reject it? Or should I call the premium service center helpline on the phone to get it corrected (this was advised by one attorney)?. Please let me know.

  36. Hi Kelly,

    I am so glad i found your thread while looking for answers to my current situation. I am in a very stressful situation and the COVID situation along with Trumps new executive order is making it much more difficult. Here is a brief of my case, hoping to hear from you as soon as possible.

    My current I 94 expired on January 10th 2020. My employer initially filed an extension in September 2019 for my previous project and I got an approved H1b only until end of year 2019. I changed my client on January 3rd and my employer filed an amendment /extension on January 2nd 2020, unfortunately I got a denial on it on March 31st. My employer immediately refiled new H1B and I got a consular approval on June 17th. By this time my I 94 had already expired. During this pandemic and travel restrictions I could not leave the country to get stamping done, I don’t know how long it will take for me to even travel, on top of all this Trumps new executive order the suspended until end of the year! I please suggest /answer my questions below:

    1. When does my unlawful stay started is it from January 10th the I 94 expired date or the from the day I got the denial on my petition that is March 31st.?
    2. Is there a way for me to request uscis to transfer from consular processing to regular processing and get an I 94 given the current situation and unable to travel to get stamping and even though I go for stamping it will not be done until the end of year.
    3. If there is no other way than to travel and get stamping done, can I request uscis to extend my stay due to the travel restrictions without accruing unlawful presence that might ban my re entry to US? Please suggest

    1. Hi Madhu–That is a tough situation. The ULP bar starts to accrue on the date of the denial which would be March 31st. I don’t think I will answer the rest of your questions because it’s treading on legal advice and I am not allowed to give you legal advice on a website since you are not our client. I would talk to your immigration attorney about options because I am not exactly sure how your situation can be remedied right now. The good news is that there is a chance that by the time you can leave to process, you won’t be have accrued 180 days from March 31. So you have some time. But you cannot work during that time. Unfortunately. I’m sorry if this was not particularly helpful. There is only so much I can do via website. Also, I don’t entertain follow-up questions because I am trying to get to everyone. Good luck. I know how stressful this is; especially with the new EO from our “fearless leader”. Ugh.

  37. Hi Kelly,

    My wife is on H1B just noticed that her I-94 expires on 14th Jun 2020(date of her passport expiration, she got a new passport about 2 months back), given the immigration situation now is nunc pro trunc the best way to go about this?

    Thanks!!

    1. Hi. Yes, I would think so. She has not been out of status for very long and she really cannot travel right now, so I would file the extension NPT with any/all info you can provide about extreme/unsual circumstances including emotional impact, financial impact, etc.

      Good luck!

      Kelly

  38. Hi Kelly,
    Thanks for putting in all your valuable time and efforts to answer the questions!

    So, I am in a similar situation to others. I am on a L1-A visa and my I-797 is valid till March 2021 but my I-94 recently expired (like 10 days ago). I approached my employer this week and they told me that they would file for the NPT by next week Monday.

    So my questions are:

    1) Am I still allowed to work till the extension is filed on Monday?
    2) What are the chances of NPT getting approved?
    3) What if the NPT gets denied?

    Thanks in advance!

    1. Hi Pramesh:

      You are welcome. Thanks for showing appreciation. Times are super stressful now (as if they weren’t before last Monday!) and I feel bad for those in these situations through no fault of their own. Well, I do think it’s a good idea for me to write here for all to see CHECK YOUR I-94 when YOU ENTER!!! This is the employee’s responsibility because we have hundreds of clients, and the employee only has themselves. I am not lecturing you in particular. I just wanted to say that and will say it over and over because I feel so bad that so many are writing to me in the exact same situation. It would be nice of CBP to mention this when they enter the I-94 details (and there are unicorns) but they don’t. Anyhow, unless you are itching to travel, I would have them file it NPT and have them PP. Even if you have to pay for it, it’s worth it. Offer an explanation as to why you didn’t know it was expiring. At our office, if we miss an expiration date and have to file NPT, we throw ourselves on our sword and say it was our fault, not the client’s (even if it was the client’s fault), so maybe your attorneys will take the heat for you. Be sure to let them know that you cannot travel due to COVID and mention any extreme and unusual hardship (whatever that may be i.e. family, children, health, COVID, etc). You are not that far out of status, so that’s a good thing b/c you are not close to accruing 180 days BUT…YOU CANNOT work. Otherwise, you will have to disclose that on your DS-160 when you finally do go for visa stamping. Hope this helps. I think they are being fairly generous these days in adjudicating these. Also, as I have said before, I don’t really invite follow-up questions b/c I give my time freely to this blog and want to get to everyone. Good luck!! And report back for others to see. My best, Kelly

  39. Hello Kelly,

    Thanks a lot for taking time to do this. I got most of the answers to my question by reading the thread – very helpful.

    I also have an expired I-94 (expired on 05/09/2020, linked to expiry of my passport) and have a valid L-1A (expiring in 2024). i’m currently exploring doing a (same day) return trip to Mexico/Jamaica to correct the expired date on the I-94 (since I have been able to renew my passport).

    1. What are the risks of me being declined entry? Can I explain to CBP officials?
    2. Is that a viable option versus filing an NPT which can take 4 months?

    3.

    1. Notwithstanding COVID, you could leave and return since you have not yet accrued 180 days of unlawful presence. But overstaying a visa can also subject you to 222g which requires you process in your own country. Why not file NPT and pay for PP?

  40. Hi Kelly

    I changed job in Aug,2019 with i797 approved till June,2022. I went to Canada in Oct,2019 for 2 days of work.
    When I came back via land, CBP office used my old employers visa stamp to update I-94 which expired on Feb,2020; instead of my current employers I797.
    Now, what are my options?

    Thank you so much in advance!

    1. Since this was their fault, you can either get it fixed at deferred inspection or leave and return (but COVID of course). Just be sure that was the error and not your passport expiration. If they won’t do it, you will have to file an extension NPT. Good luck! Kelly

      1. Hi Kelly

        Thank you so much for the reply Kelly.

        Can I leave country and come back? Because I don’t have unexpired visa stamp. The last stamp I have is Feb,2020.

      2. Hi Kelly

        Thank you so much for the reply Kelly.

        Can I leave country and come back? Because I don’t have unexpired visa stamp

          1. Thank you so much Kelly, you are doing really a good job to reduce all of our stress!

            The AVR says one needs to have unexpired I-94. In my case, I have I 94 attached to my current I797, but technically my latest I-94 is what CBP officer issued at border when I travelled to Canada last year which is expired.

            I believe I don’t have unexpired I-94. Is it correct? I am little confused.

          2. Oh, my pleasure. I wish I could get to all of them. Well, your current I-94 is not correct and you have the proper I-797, so I think that you would qualify, but I would like you to run this by your lawyer first.

            Thank you.

            Kelly

  41. Hi Kelly.
    Question- h4 out of status due to below reason.

    We filed h4 extension in Feb ,but h1 got denied on 23rd March.after i-94 expiry.(20 March)
    we filed new h1 with npt and it got approved on June 30 with backdated I-94.
    We forgot to file h4 extension along with that.

    I have filed h4 extension last week.. my friend said I had to add npt as h4 are out of status for around 4 months now to get h4 approved.

    . As if now the check has not been encashed and we have not got receipt no.yet.

    .what are ways to get NPT added to our application ? Or any other suggestions to get h4 approval.
    TIA

    1. You forgot to file the H-4 extensions! Oh dear. Well at this point, you will most likely get an RFE (or a denial), and then you can explain the extenuating circumstances. If you get a denial, you will have to re-file once again. You cannot just file the NPT with USCIS absent an RFE because it’s not a separate application. It’s part of the H-4 extension of stay. Good luck.

      1. HI Kelly,
        One thing i forgot to mention that i have previews H4 is still pending which was filed before I-94, will it help for my case

  42. Hi Kelly

    How do I consult with your office? My company lawyer is saying they don’t think I am eligible for NPT but my company is okay me to hire outside lawyer to do this.

    Please this is an urgent matter as I am out of status 150 days now.

  43. Hi Kelly,

    Thanks for your response. I filed for NPT and just got response from USCIS for RFE; Fingers crossed.

    Had a related question. If my i-94 (which is overstayed) is tied to my old passport number and I travel out of the US with my new passport and return still with my new passport, will CBP know if I truly overstayed? since they would not have my records of departure (under old passport) but rather new. Hence could have the CBP issue me a new I-94 based on new passport number upon return? I am not sure if CBP systems are able to link old and new passports but is this something you have seen happen in the past? and if you have any experience to share that would be great. I’m really considering that.

    1. Hi Kelly,

      I was selected in the H1B lottery for 2021. We sent our full H1B petition on June 29 by Fedex with scheduled delivery date of June 30. June 30 was the last date for H1B submission. How every, due to delay by Fedex our petition delivered to USCIS on July 1 (one day after the last due date).

      Few days ago we got noticed from USCIS our petition is rejected because of late filing. I am planning to file/request NPT. Do you think NPT would help in my case? Or NPT would allow us to resubmit our H1B petition with more chances of getting the H1B approval from USCIS?

      I really appreciates your quick responses.

      Thank You

      1. Oh boy. That’s really unfortunate. You always want to leave some wiggle room with these filings. I don’t think NPT is going to work here. This is presumably a change of status. The only thing I can think of is a motion to reconsider, although I don’t even know if that option is available for a rejected H-1b. I’m so sorry.

  44. Hi Kelly,
    Thanks for your response in advance.

    My L1B was expired on 11/03/2019. My employer initiated extension by end of October.

    I was selected for H1B Lottery this year and L to H conversion filed on June 29th for the same employer. Received receipt notice on July 29th. Status is still pending with USCIS.

    My 240 days expired for L1B extension on June 30th 2020. I stopped working from July 1st.

    Unfortunately L1B denied on August 10th (5 days back). My employer yet to get the denial notice for the reason.I’m still working for the same project it got approved initially 3 years back.

    I can’t travel out of country as my wife is currently pregnant and doctor advised not to travel due to high risk in COVID-19 and provided a medical certificate for the same.

    What is the best option for me?

    1) Can we apply L1B extension in Nunc pro Tunc considering my wife’s situation?

    2) i assume I’m in out of status from August 10th(L1B extension denied) . How long can i be in out of status and will it impact my H1 conversion?

    3) If it impacts H1, will it affect only the COS or the H1 petition itself ?

    4) Chances of getting H1B approved under consular processing if it affects only COS?

    5)Again if H1 gets approved under consular processing, we need to travel out of country to get it stamped and can’t come back until December end due to the new proclamation.

    6) what can be done to avoid the out of status from August 10th to October 1st if H1 approved with COS by any chance ?

    Can you please suggest me the best option considering my wife’s pregnancy and health?

    1. Hi. Thank you for all of the good details. I think the most important thing here is why they denied the L-1. Was there an RFE? Depending on the reasoning, you may be able to do a Motion to Reopen/ Reconsider. While they may not be able to approve the H-1b as a COS, they should still approve the status for C/P. Be mindful of the 3/10 year bars. Good luck and congrats on the baby.

  45. Hi Kelly,
    Thank you so much for replying for replying all our queries. It was really helpful. I have a same situation in terms of my H1B
    My I94 expired on June 2019 which CBP matched based on my passport expiry date. (I94 – 06/2019, H1B expiry – 09/2020, old passport date – 06/2019 according to the system I overstayed more than 420 days counting )
    I have renewed and got the new passport but I didn’t notice my I94 expiry date and honestly I didn’t even know I94 plays major role in terms of lawful presence later. I got to know from my lawyer during the preparation of my H1B extension. As per the suggestion of my Lawyer I tried calling CBP Deferred Site but no luck. Finally we ended up filing H1B through NPT with Premium processing on 08/21/2020, It’s delivered to USCIS already. Lawyer was stating it’s kind of hard to get extension for me as USCIS will state that the fault of not checking could be me. I’m kind of little nervous right now. I just want to check with you and below are questions and I really appreciate if you could share any ideas for me to proceed forward.
    1.Will my H1b-NPT will get approved for 420+ overstayed days?
    2. If not, What are other options do I have right now
    3.If not, Can I appeal back for the worst case scenario
    4. Just curios question, Is there a way I could try for other CBP sites to check my luck while my H1B in process
    Please suggest
    Thank you
    Ganesh

    1. Hi Ganesh. It’s hard to know if they will grant it. I think the extreme and unusual circumstances are Covid, but that wasn’t the case when you missed the deadline. Generally deferred inspection will not correct this for you in this scenario. That being said, the number of days you wentover is not dispositive. The 3/10 year bars are only relevant when you leave and try to re-enter. Let’s keep our fingers crossed.

      1. Thanks for your response, Kelly. Yes, fingers crossed. Just curious, If I don’t leave the country what other options do I really have?

  46. Hi Kelly,

    I heard a lot of good feedback on you.
    Just reading on each and everyone case you really amaze me.
    Hoping you could give me a good advise for my options.

    My current lawyer who filed my 140, H4 extensions and I-485 never noticed that
    I don’t have a valid I-94 during the filing of my I-485 (filed October 2019)
    My family already got the GC EAD and just waiting for interview schedule (but it was cancelled last April 2020 due to covid).
    Problem occured when we have to file Nunc Pro Tunc last April 2020 to correct the H1b tranfer petition
    (previous lawyer filed I-797 as consular processing) 2nd lawyer never notice about my expired I-94
    We just got the approval on Nunc Pro Tunc this week but only approve for future dated date April 30, 2020 to March 2021.
    My starting date of my employment was not covered from March 12, 2018 – April 29,2020
    Which leaves me a gap status with occuring unlawful status and unauthorized work for more than a year (10 year bar based on my research).

    Can I refile my Nunc Pro Tunc again to ask to cover the backdated date?
    Can I use the Nunc Pro Tunc as an evidence to proof that it was not my mistake during the GC interview?
    I have no idea what are my options to fix this before getting a new schedule for GC interview. Hope you can give some advise.

    Thanks in advance!

    1. Oh! Thank you for the nice compliment. So, if I am reading this correctly, you are just concerned that they did not backdate the H-1b, is that correct? If that is your concern, fear not. The regulations provide for it to automatically put you back in the last status. Since you cannot backdate an LCA, you also cannot backdate the I-797 for an H-1b. If it’s for an H-4, they will do it because there is no LCA attached. But if you read the regulations closely, that gap will not impact your AOS. Also, under 245k of the Immigration Act, you can accrue up to 180 day of unauthorized employment and still be eligible for AOS. But maybe I am reading this wrong, so feel free to clarify and I will try to answer soon. Also, the 10 year bar does not apply unless you leave the US and are making an admission. There is no 10 year bar attached to an AOS.

  47. This made my day Kelly! Our lawyer is not answering our calls and email so we’re like hanging and no once to ask. I never knew about Nunc Pro Tunc for H1b cannot backdate due to LCA so I thought I still have to worry about the gap status. Since most of the thread I’ve read was approved for backdated date. Your understanding is correct based on my lawyer, I’ve been out of status for more than 180 days so they filed Nunc Pro Tunc to fix the issue while my green card is still pending. I’m really glad that I take a chance on asking you this. I can enjoy my weekend with having peace of mind. Thank you so much
    Kelly! Have a great weekend!

  48. Hi Kelly, I went through most of the posts and I’m really impressed by the kind of service you are doing. Thanks for it!

    I’m on H1b was working for employer A with i94 valid until May 22, 2020 so were my wife and son’s i94, valid until May 22, 2020. I changed my employer in January 2020, the company B applied for my transfer, there was RFE on transfer in March and then Covid 19, flights ban to India when my I94 was approaching and I had these tensions in mind. Later RFE is submitted and I got my extension approved on July 27 until Aug 27, 2020. When I received the approval copy, I realized the H4 extension was not submitted. Employer applied for H4 extension using NPT, in the request letter they have mentioned that we did not notice the last date of I94. Is it good enough to expect an approval?

    After Aug 27, there was another extension submitted for my h1b, this time they did not file for H4 extension citing my wife and son are already in out of status for some time. My H1b is approved now. Can I apply for extension using NPT again while my previous NPT extension is in process?

  49. My wife’s I-94 expired 45 days ago due to passport expiration. Her H1B is still valid till Aug 2021 but we are concerned about accumulating out of status time. Some follow up questions:
    1. Is it better to leave country and file NPT after leaving country to avoid accumulating out of status time?
    2. Is premium processing allowed on NPT?
    3. How long does it take for NPT approval on an average on premium processing?
    4. If NPT gets approved, will USICS automatically remove the gap of 45 days?
    5. If NPT is rejected and it takes 3 months for the results, will her out of status time be 45 days + 3 months or will it be just 45 days?

    1. Jeez, I’m having a hard time keeping up with all of these posts! Let’s see: She needs to file an H-1b extension NPT asap. She can ask for PP. It will take 15 days for them to either approva/deny/RFE. If it’s approved, it goes backwards (which is what NPT means i.e.: back in time) and fills in the gap BUT with an H-1b, the new approval notice might not be backdated b/c they can only approve it for the period on the LCA and LCA’s cannot be backdated. No reason to leave the US while it’s being adjudicated. Good luck!

      1. Thank you Kelly, you are a life saver. Her H-1b is valid till August 2021, will she still need to file an H-1b extension right now or can there be just an I-94 extension with NPT? Also, since her visa is still valid, I’m assuming if NPT gets approved, there won’t be any gap, is that accurate?

  50. Hi Kelly, Are there any issues during I-485 if applicant able to resolve these issues thru NPT (Nunc Pro Tunc). I had similar situation back in 2011 and got resolved and went for stamping in home country. During VISA appointment officer mentioned to me your not in out of status. Could assume I-94 is back dated thru NPT. Kindly let me know.

  51. Hello everyone! Kelly here. As you may or may not know, in October, there was serious forward movement in the EB-3 category for Indian/Chinese nationals. Therefore, we are very busy in October and I won’t have as much time to help out with these NPT comments. Also, thank you everyone for being kind and courteous and appreciative of the time I put into this. It’s clearly a topic near and dear to my heart. A reminder: Share the outcome of your case for others. Give others in your same situation hope. Also, remember that I cannot give “legal advice” on this blog, so I try to keep things neutral. I also will rarely answer follow-up questions. I just don’t have enough time. Lastly, I don’t answer all queries because some of them seem redundant. So please be sure to read over all of the scenarios and answers (I know there’s a lot). I will do my best to answer you within a reasonable amount of time. Thanks everyone. CHECK YOUR I-94 after EVERY entry. Don’t rely on your I-797 approval notice. Stay healthy and happy! Kelly

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